September 30, 2010

Plaintiffs' Lawyers in Cobell Optimistic About $3.4B Settlement

The plaintiffs' attorneys in a long-running Indian trust suit in Washington say they remain confident Congress will approve the $3.4 billion settlement, despite adjournment in the U.S. Senate yesterday without a vote.

The settlement, first announced last December, stalled in Congress amid concern over attorneys fees and equitable distribution of funds to potentially hundreds of thousands of class members.

The suit in the U.S. District Court for the District of Columbia, filed in 1996 by lead plaintiff Elouise Cobell, sought a historical accounting of billions of dollars held in trust by the federal government for accounts tied to oil, natural gas, minerals and timber.

The terms of the settlement have been changed to garner support among Senate Republicans, a lead attorney for the plaintiffs, Washington solo practitioner Dennis Gingold, said today. “There is reason to be optimistic,” Gingold said. “We uniquely have bipartisan support in an environment where you don’t see that often.”

The new terms, Gingold said, add $100 million to the money set aside for distribution to the lowest-income trust account holders. That total amount now is $1.5 billion. The money was transferred from the nearly $2 billion the government has dedicated to a land consolidation program that is part of the settlement.

Gingold said Sen. John Barrasso (R-Wy.) and his staff proposed the $100 million transfer. Barrasso’s office did not immediately provide comment this afternoon on changes in the Cobell settlement. Barrasso, who questioned the amount of legal fees, had been a critic of the settlement, in addition to Sen. Tom Coburn (R-Okla.)

The Justice Department did not immediately provide comment this afternoon.

Senior Judge Thomas Hogan of Washington federal district court has the final say on attorneys fees. The plaintiffs have agreed to argue between $50 million and nearly $100 million. Hogan, who has urged Congress to act on the settlement, is planning to meet with the lawyers in October for a status conference.

In August, Hogan set a deadline of Oct. 15 for congressional authorization. Congress is set to reconvene in November after the midterm elections.

Comments

You'll notice the settlement addresses two classes of plaintiffs. The first class was certified by the court and has been the party for the fourteen years of the suit. This class of plaintiffs and their lawyers lost, and refuse to go to the US supreme court. Then after two months of settlement negotiation, another class abruptly arose. The first class and its claims were in equity, no monetary damages against the government; the new second class and claims were for money, even though the sovereign had never done a judicial referral or waived immunity, thus all the posturing now. Of course, lawyers take contingency cases all the time as these did with the first class. They take the chance of winning big and the run the risk of winning nothing. These lawyers now want 100 million in fees for losing on behalf of the first class after fourteen years and negotiating for two months on a new second class on wholly new claims. Native Americans- -grab your ankles--again.